Use plain(ish) language
We want to present our terms like any other content that’s meant for humans, not just for other attorneys. Wherever possible, we tried to strip down the language to make it simpler. It was a difficult process. Writing in plain language is hard for lawyers for a variety of reasons. Legalese is our habit and our security blanket. Now, bad habits must be broken, so just because wherefores, hereunders, represents, and shalls all run from my keyboard like LOL, ttyl, and OMG flow for others doesn’t mean I should use them. Particularly since more and more regulators are calling for easier to understand policies so consumers can make more informed choices. But as a lawyer, I feel safe when I use certain phrases, like "represent and warrant" for example, because when I use them I can be certain of what a court will adjudicate them to mean. In a common law system, like we have here in the U.S., we build law through case law, and there are hundreds of cases where two attorneys argued about what a specific term meant, and a judge then decided the answer. In light of that long judicial history, using legal terms is often safer. But since the foundation of contract law is an understanding of the parties, not the specific words used to memorialize that understanding, it’s better if all the terms are clear for everyone instead of just familiar to attorneys.
That said, there are some instances where plain language just isn’t possible. There are some terms that are so nuanced and specific that there’s no plain-language equivalent. If you try to replace them, you just end up with a long, wordy, and sometimes-even-terrifying sentence that stirs up more concern from customers than it remedies. This has created disasters for some companies in the past, and once someone hears that you’re taking ownership of all their kitten photos, it’s really hard to undo that damage. That’s why we haven’t removed all the legal terms from our policies. You’ll still come across an occasional "represent and warrant," "shall," or "indemnify," but know that these terms are there for a reason—not just because we couldn’t think of anything better. You’ll also notice that these policies aren’t as playful as some of our other content. That’s because legal terms are serious business, and at MailChimp, we adapt our tone of voice based on the situation. These documents are agreements we have with all our users, so this isn’t really a time for jokes. It’s a time to be clear and give users all the information they need in order to make an informed choice about whether or not they want to do business with us (and I sure hope you do). Though we do sneak one or two fun things in for users to find, so stay vigilant:
Disappointed to learn on reading @mailchimp‘s T&Cs for ‘Gather’ that they consider a Zombie Apocalypse and Godzilla to be force majeure
— Tracey Johnson (@Cr8tveBarnsley) February 21, 2013
Make it logical
We divided our policies into sections based on what users look for most often, instead of an order arbitrarily chosen by lawyers. By dividing the terms into sections united by themes like payment and liability, our readers can refer back to specific sections, instead of searching through an entire body of text.
We managed to avoid some of the trappings of typical legalese. We no longer capitalize entire paragraphs, we set the type large enough to read comfortably, and we use bullets and numbers to give a sense of hierarchy.
Make thorough disclosures
Every year, our site undergoes a privacy review by a company called TRUSTe. In the course of that review, they verify the cookies and web beacons that are used on our website. This year, they found a flash cookie that was there because we embed video on our site. We don’t use that cookie for anything (some sites will use these types of cookies to keep track of volume preferences or high scores). But even though we don’t use the cookie, it’s there—so we thought we should tell you about it.
Provide a little help
Finally, we added a bit of helper text in the sidebar to supply context for certain sections. A trend we’ve been seeing for a while now is that websites will add a sidebar to their terms that has a plain-language summary, or a spotlight on parts they think are most important in their terms. We feel this is a little disingenuous, because if all a user needs to read is that sidebar, then why isn’t that your entire agreement? The answer is because they still want to have the protection of all the nuances of legalese. I don’t think you can have it both ways. The goal of our sidebar is not to summarize the terms, but to give you more context for a particular provision. In some cases, the helper text shares a concrete example of what we’re talking about, like this:
Other times it gives you some background on a legal term: